老年安全制度下剩餘財產分配請求權之研究

Claim for Distribution of Martial Property under the Old-age Security System

剩餘財產分配制度，乃基於男女平權、肯定家務勞動之價值為出發點，使婚姻關係結束時經濟上相對弱勢之一方，得以獲得經濟上的救助。而可納入剩餘財產分配計算之標的，乃係「非因繼承或其他無償取得之財產或慰撫金」的「現存之婚後財產」。在我國邁入高齡化社會的情況下，老年安全制度下的社會保險金、雇主責任下的退休金以及補充概念的國民年金的重要性已不言而喻。此時剩餘財產所分配之標的，可否將上開老年安全制度下的強制社會保險及職業退休金納入，即成為至關重要的問題。研究發現，在社會保險及雇主責任下之退休金的部分，實務上目前似乎已有「非無償取得」而得納入剩餘財產分配之一致見解，然對於「現存」財產之認定仍未統一，以及另有實務進一步將夫妻協力之程度納入是否分配之考量。至於國民年金是否為剩餘財產分配之標的，目前實務尚未有定論。本文將從剩餘財產分配請求權的理論基礎及相關意旨出發，分析實務在剩餘財產分配中所劃定之分配標準是否妥適，以及目前相關裁判進一步認定的意義，最後將之整理及歸納，提出本文結論。

The Institution of Distribution Marital Property is based on the gender equality and is recognized of the value of housework as a starting point, and then as the side of economy-weakness can get financial assistance when they marriage relation is over. The remainder of the property acquired by the husband or wife in marriage shall be equally distributed to the husband and the wife, except the property acquired from succession or as a gift or solatium. Whilist Taiwan steps into an aged society, the importance of social insurance under the old-age security system, pension under employer's responsibility,and the supplementary concept of national pension has become self-evident. At this time, whether the scope of the distribution of the remaining property can include the compulsory social insurance and occupational retirement under the old-age security system becomes a crucial issue. From the study, the part of social insurance and the occupational retirement, most of the implementation of the judgment seems to have a consensus view of ''non- as a gift'' that can be distributed. And yet there is still very little agreement on what property is ''existing''. In addition, the practice further takes the degree of cooperation between husband and wife into consideration of distribution. As to national pension could be distributed? Until now, the jury is still out.As a result, from a foundation of Claim for Distribution of Martial Property theories and related intention perspective, this research analyzes the allocation standard defined in the distribution of remaining property practically, and the significance of the further determination by the relevant judgment, and finally organizes and summarizes this, and therefore generate the conclusion of this study.